Demobilization: Interim Constitution Accord

The Pretoria Minute of August 1990, Article 3.

In the interest of moving as speedily as possible towards a negotiated peaceful political settlement and in the context of the agreements reached, the ANC announced that it was now suspending all armed actions with immediate effect. As a result of this, no further armed actions and related activities by the ANC and its military wing Umkhonto we Sizwe will take place. It was agreed that a working group will be established to resolve all outstanding questions arising out of this decision to report by 15 September 1990. Both sides once more committed themselves to do everything in their power to bring about a peaceful solution as quickly as possible.

236. Transitional arrangements: Public administration

Section 8

(a) The National Defence Force referred to in section 224 shall, subject to this Constitution and any Act of Parliament, mutatis mutandis be governed by the Defence Act, 1957 (Act 44 of 1957).

(b) Any reference in any law to a defence force referred to in section 224 (2) (a) or (b), shall be deemed to be a reference to the National Defence Force.

(c) If the number of the members of the National Defence Force exceeds the personnel strength determined in respect of the force design and structure for the Force, any member of the Force who, due to integration, consolidation and rationalisation of the National Defence Force is not accommodated in such force design and structure, shall be dealt with in accordance with a law.

The demobilization and reintegration aspect of peace process were left to the interim government and the interim parliament. The parliament passed the Demobilization Act in 1996.

1996 Demobilization Act

Definitions

1. In this Act, unless the context otherwise indicates-

(i) "certified personnel register" means the certified personnel register referred to in section 224(2) of the Constitution; (iv)

(ii) "closing date", for the purposes of section 6(1)(c), means the date 12 months after the date on which this Act comes into operation; (x)

(iii) "Committee" means the Demobilisation Committee, established by section 2; (vi)

(iv) "Constitution" means the Constitution of the Republic of SouthAfrica, 1993 (Act No. 200 of 1993); (v)

(v) "demobilisation" means the disbanding of members of the former nonstatutory forces who do not enter into agreements for temporary or permanent appointment with the South African Defence Force, as contemplated in section 236(8)(d) of the Constitution; (ii)

(vi) "Department" means the Department of Defence; (iii)

(vii) "dependant", for the purposes of section 5, includes-

(a) any person in respect of whom the deceased was legally liable for maintenance at the time of his or her death;

(b) any child of the deceased born after his or her death;

(c) any surviving spouse of the deceased by virtue of a marriage or a union contracted in accordance with customary law or which is recognized as a marriage in accordance with the tenets of a
religion; (i)

(viii) "Minister" means the Minister of Defence; (vii)

(ix) "non-statutory forces" means the armed forces not established by any law and known or formerly known as the Azanian People's Liberation Army and uMkhonto we Sizwe; (viii)

(x) "personnel list" means a list certified and submitted after the commencement of the Constitution, but before the adoption of the new constitutional text, as envisaged in section 73 of the Constitution, by a person duly authorised by the non-statutory force. (ix)

PART 2: DEMOBILISATION COMMITTEE Establishment of demobilisation committee

2. (1) There is hereby established a demobilisation committee which is accountable to the Minister, and which consists of a Chairperson and no fewer than four other members.

(2) The Chairperson and members shall be appointed by the Minister and shall be officials in the employment of the Department.

Duties and powers of Committee

3. (1) The Committee shall-

(a) consider applications submitted to it in terms of this Act;

(b) determine whether an applicant is eligible to benefit under the demobilisation programme in terms of sections 4 and 5;

(c) determine the benefit payable to each applicant;

(d) pay to an eligible applicant a demobilisation gratuity as provided for in the Schedule;

(e) determine the validity of the mandate of any person to act on behalf of the applicant referred to in section 6(1); and

(f) if it decides that an applicant is not eligible to benefit under the demobilisation programme-

(i) inform the applicant in writing of its decision, giving reasons therefor; and

(ii) inform the applicant in writing of his or her right to appeal against the decision.

(2) To enable it to perform its duties, the Committee shall have power-

(a) if it finds it necessary, to conduct any investigation in relation to any application lodged with it;

(b) to require any person to appear before it to give evidence or produce any document in or under his or her possession or control; and

(c) to conduct the activities which are necessary to carry out or exercise its duties and powers.

(3) The Committee may at any time review its decision if new facts are placed before it.

PART 3: APPLICATION OF ACT Parliamentary Oversight

4. The Joint Standing Committee of Parliament on Defence shall establish amultiparty subcommittee to oversee the administration and implementation of the demobilisation programme.
Right to be demobilised

5. (1) Any former member of the non-statutory forces-

(a) whose name and particulars appear in the certified personnel register or in a personnel list;

(b) who has not entered into an agreement for temporary or permanent employment with the South African National Defence Force as contemplated in section 236(8)(d) of the Constitution; and

(c) who no longer wishes to continue with a military career or does not satisfy the employment policies or the terms and conditions of service of the South African National Defence Force, shall have the right, subject to the provisions of this Act, to be demobilised and to receive a demobilisation gratuity determined in the Schedule.

(2) The Minister may on good cause shown order the inclusion in the register or list referred to in subsection (1) the name of any former member of the non-statutory forces which was by reason of an administrative oversight or error or for any other reason not included in or was deleted from that register or list before the date contemplated in paragraph 3 of Annexure D to theConstitution of the Republic of South Africa, 1996.

A name so included shall be deemed to have been included before the said date. Exclusion of recipients of demobilisation gratuity from Permanent Force

6. No person shall be appointed to any position in the permanent force component of the South African National Defence Force if he or she has accepted a demobilisation gratuity.
Dependant's benefit

7. (1) Notwithstanding the provisions of any other law, a surviving dependant of any person who, but for his or her death, would have been eligible for demobilisation in terms of section 4, shall, subject to subsection (3), be entitled to receive the demobilisation gratuity to which that person would have been entitled, had he or she survived.

(2) For the purposes of this section, section 4(c) shall not apply in determining the eligibility of the deceased.

(3) The demobilisation gratuity referred to in subsection (1) shall, if the person referred to in that subsection-

(a) is survived by a spouse, be paid to that spouse;

(b) is survived by more than one spouse, be paid to those spouses in equal proportions;

(c) is not survived by a spouse but by a dependant or dependants, be paid that dependant, or those dependants in equal proportions.

(4) A dependant's benefit shall only be paid out after the closing date for the submission of applications.

Applications for benefits

8. (1) Any person wishing to apply for a benefit under the demobilisation programme shall-

(a) complete an application in the form determined by the Committee;

(b) have a commissioner of oaths certify on the form that the applicant swore or affirmed that the information in that form is true and correct; and

(c) submit the application form to the Committee on or before the closing date.

(2) If a person who is eligible to a benefit under the demobilization programme is unable to apply in person terms of subsection (1) because of mental illness or any other disability, another person may submit the
application on his or her behalf.

PART 4: APPEAL MECHANISMS Right of appeal

9. (1) Any applicant who is dissatisfied with any decision of the Committee may appeal to the Minister by serving a written notice within 30 days after being informed of the Committee's decision. A copy of the notice of appeal shall be lodged with the Committee.

(2) Within 21 days after the service of the notice of appeal, the applicant shall submit to the Minister his or her written grounds of appeal.

Procedure on appeal

10. (1) After receiving the applicant's notice of appeal, the Committee shall, without delay, send to the Minister and the applicant a report of its findings.

(2) On receipt of the Committee's report, the Minister or any other person designated by the Minister shall inform the applicant in writing of the date on which the appeal is to be considered.

(3) The applicant or another person acting on his or her behalf shall be given an opportunity to make representations to the Minister or any other person designated by the Minister.

(4) After considering all the relevant information the Minister may-

(a) confirm, vary or withdraw the decision of the Committee;

(b) refer the matter back to the Committee for further consideratio together with such instructions as are necessary to enable the Committee to deal with the application; or

(c) make such findings as he or she may deem necessary.

(5) The applicant and the Committee shall be informed in writing of the Minister's decision.

(6) The decision of the Minister shall be final.

PART 5L COMMUNICATIONS RELATING TO DEMOBILISATION Duty of Committee to inform

11. The Committee shall take all necessary steps in order to inform the
public as to-

(a) the existence of the programme;

(b) the establishment of the Committee;

(c) the grounds for eligibility;

(d) the closing date for the submission of applications; and

(e) any other matter that may assist applicants in understanding the demobilisation programme and procedural matters relating thereto.

Implementation History

1993

No Implementation

The 1993 interim constitutions established the South African National Defence Force (SANDF). All guerrilla forces were expected to be integrated into the new SANDF. Therefore, demobilization and reintegration were not an issue in 1993.

1994

Minimum Implementation

In April 1994, seven forces were combined into one, constituting the united South African National Defence Force (SANDF), as laid out in the Interim Constitution of 1993. The reduction of funds allocated to defense rendered the Joint Military Co-ordinating Committee (JMCC) strategic planning process, which had envisaged a SANDF strength of 90, 000, unaffordable. Therefore, a demobilization and/or rationalization process was started. According to van Stade: “A Personnel Rationalisation Work Group (PRWG) has been instituted in order to oversee the rationalisation process from within the SANDF. The composition of the PRWG includes representatives from all the constituent forces, the Secretary for Defence and memebrs of the British Military Advisory and Training Team (BMATT), and is aimed at ensuring a transparent process within the margins of fair labour practices. This work group has recently instituted a sub-work group to make proposals in respect of psychological and social support to members and their families who will be affected by the rationalisation process in the SANDF. A special Consultation Forum has also been established to negotiate with employee organisations in respect of civilian members that could be affected by the rationalisation process."1

Since the integration into the new armed force had just started, demobilization and reintegration was not issue.2

  • 1. L.B. van Stade, “Rationalisation in the SANDF: The Next Challenge,” African Security Review 6, no. 2, (1997), accessed December 6, 2010, http://www.issafrica.org/Pubs/ASR/6No2/VanStade.html.
  • 2. Note: For approach and principles and the criteria to use when identifying individuals for non-renewal of contracts and retrenchment see ibid.
1995

Intermediate Implementation

“The formal demobilisation and reintegration process started after 1994 and legislation to this effect was passed in 1996."3 “The legislative framework for demobilization and reintegration was only in place in 1996 with the institution of the policy White Paper on Defence and Demobilization Act. As demobilization had started in 1995 after the democratic elections in 1994, these had to have a retrospective effect. The demobilized were supposed to be catered for by a three-legged demobilization and reintegration strategy:

- gratuity payment, calculated according to length of service in the liberation
armies;
- counselling and advisory service to guide the ex-fighters on how to manage
their gratuities as well as to advise on the options available to support their
reintegration; and
- skills upgrade via the Service Corps training scheme hitherto inappropriately located in the department of defense.”4

On August 25, 1995, Defence Minister Joe Modise made an announcement to cut the SANDF strength from 135,000 to 75,000 members by 1999. The SANDF chief said that “about 10,000 members of former black liberation armies ineligible or unwilling to serve in the South African National Defence Force (SANDF) would be demobilised immediately at a cost of 225 million rands (60 million dollars) in gratuity payouts."5 It was reported that eleven former members of political militias were appointed in the SANDF generals rank. They were among 1,300 officers selected from 14,600 former MK and APLA cadres already integrated with the SANDF.6

Approximately 18,000 former MK and APLA members reported to the SANDF force during the 18-month reintegration process, which ended in November 1996. Several of the 17,824 former cadres chose demobilization.7

The government introduced a Bill to facilitate the reintegration of demobilized combatants into civil society by providing for a demobilization gratuity. A Service Corps was created, which was dedicated to the training of ex-combatants in skills suitable to their reintegration into civilian life.8

  • 3. Lephophotho Mashike, “Standing down or standing out? Demobilising and reintegrating former soldiers,” African Security Review 9, no. 5/6 (2000).
  • 4. Gwinyayi A. Dzinesa, “Postconflict Disarmament, Demobilization, and Reintegration of Former Combatants in Southern Africa,” International Studies Perspectives 8, no. 1 (2007): 81.
  • 5. "South Africa to slash its military by 60,000 to 75,000," Deutsche Presse-Agentur, August 22, 1995.
  • 6. "SOUTH AFRICA; Eleven former guerrillas appointed army generals," BBC Summary of World Broadcasts, October 9, 1995.
  • 7. "SOUTH AFRICA; Nearly 18,000 former guerrillas integrated into army in 18 months," BBC Summary of World Broadcasts, December 10, 1995.
  • 8. "SOUTH AFRICA; Former MK, APLA members demobilized from SANDF," BBC Summary of World Broadcasts, September 9, 1995.
1996

Full Implementation

The SANDF became a transformed and reformed organization. “Of the approximately 28 000 originally registered Umkhonto weSizwe (MK) and 6 000 Azanian People's Liberation Army (Apla) members, about 16 000 reported for integration and, of these, almost 4 000 chose to demobilise. Of those that integrated, almost 1 700 were appointed as officers - a remarkably high percentage - of which 150 are women. Of these officers, comprising about 10% of all regular force SANDF officers, 11 became generals, including the country's first black woman general. This group, together with the 500 officers from the former homelands' forces, is the strategic base from which to develop broad representivity of black officers at all levels of command."9

Approximately 18,000 former MK and APLA members reported to the SANDF force during the 18-month reintegration process, which ended in November 1996.10

  • 9. "South Africa; Army marches into the future," Africa News, November 8, 1996.
  • 10. "SOUTH AFRICA; Nearly 18,000 former guerrillas integrated into army in 18 months," BBC Summary of World Broadcasts, December 10, 1995.
1997

Full Implementation

The process to integrated, demobilize, or reintegrated former combatants from the rebel armed force was completed by the end of 1996.

No further developments observed this year.

1998

Full Implementation

No further developments observed.

1999

Full Implementation

No further developments observed.

2000

Full Implementation

No further developments observed.

2001

Full Implementation

No further developments observed.

2002

Full Implementation

No further developments observed.